VI. Egyptian Treatment
of Those Detained

Egyptian law prohibits entry or attempted exit from the
country through any points other than designated border crossings, prescribing
punishments of up to six months' imprisonment and a fine, or from two to five
years' imprisonment and a fine where the crossing occurred in specially
designated prohibited areas, also referred to as security zones.[179]
In the Sinai, and on Egypt's border with Sudan, police have arrested hundreds
of migrants in the past two years alone. A spokesperson for UNHCR Egypt
confirmed that "the majority of [migrants] in detention now are [those]
captured at borders."

People apprehended at the border and taken into detention
face violations of their rights as criminal defendants, as refugees, and as detainees.

Use of Military
Tribunals to Try Civilians

Most migrants and asylum seekers who are arrested in Cairo
are tried before civilian courts and have access to UNHCR. However, migrants
arrested for illegally entering Egypt at a non-authorized border crossing, or
for attempting to enter the Sinai peninsula (a designated "security zone")
without authorization, or for attempting to cross the border with Israel, fall
within the jurisdiction of the nearest military tribunal. At least four
Egyptian military tribunals try persons detained for crossing borders: in Aswan
and Ghorgada (for irregular entries from Sudan); in Marsa Matroh (from Libya);
and in Ismailiyya (those entering the Sinai military zone). These tribunals
apply domestic Egyptian law.[180]The tribunals' rulings cannot be appealed.

Migrants are tried and sentenced in groups divided by
gender. The authorities make no effort to try families together, and in many
cases try and sentence as a group persons who did not attempt to cross the
border at the same time. Refugees and migrants said their trials comprised two
or three relatively brief hearings and that they were not asked their motives
or their asylum status during the trial. While lawyers are present at trial
hearings, refugees and migrants said their legal counsel tended to play a
merely pro-forma role. "I was in jail for six months," said a Southern Sudanese
woman who was arrested in June 2007 but who succeeded in crossing into Israel
after her release. "The judge called us by name, and said, 'You tried to cross
the border with Israel,' and our lawyer just said, 'Don't say yes, say no.'"[181]
Several former detainees complained that they paid lawyers to represent them
but received merely pro-forma legal services.

Trying civilians in military tribunals violates Egypt's
obligations to ensure the rights to due process and a fair trial under the
ICCPR and the African Charter on Human and Peoples' Rights. Egypt is obliged to
afford due process and a fair trial to migrants, asylum seekers, and refugees whom
it detains for violating national laws by entering the country irregularly via
unauthorized points on the Sudanese border, by illegally entering the Sinai
peninsula, or by attempting to cross the border into Israel in an unauthorized
manner. The ICCPR affirms that everyone has the right to be tried by a
competent, independent, and impartial tribunal established by law (article 14).
As a state party to the ACHPR, Egypt has "the duty to guarantee the
independence of the courts" (article 26).

The Human Rights Committee has stated that the trial of
civilians by military courts should be very exceptional and occur only under
conditions that genuinely afford full due process.[182]
The African Commission on Human and Peoples' Rights, the body created to
monitor the implementation of the ACHPR, elaborated that "the only purpose of
military courts shall be to determine offenses of a purely military nature
committed by military personnel," and that "military courts should not, in any
circumstances whatsoever, have jurisdiction over civilians."[183]

Separation of families

One consequence of the detention policy is family
separation. In one case recounted to Human Rights Watch, Egyptian border police
separated a woman from her husband shortly after arresting them in April 2007,
taking them from the border to different prisons. "That was the last time I saw
him," she told us, 11 months later.[184]

Specifically with regard to minors who are refugees or
asylum seekers, UNHCR's Executive Committee (ExCom) has called upon states "to
respect and observe … the principle of the best interests of the child and the
role of the family as the fundamental group of society.[185]
The ExCom further "[urged] States and concerned parties to take all possible
measures to protect child and adolescent refugees, inter alia, by: (i)
preventing separation of children … refugees from their families."[186]

Before their cases come before military tribunals for trial,
mothers are detained with any accompanying minor children (see below). The
military tribunals typically sentence women to about six months and men to
around one year in prison for illegally entering Egypt or attempting to cross
illegally into Israel, in addition to fines of around 2,000 Egyptian pounds
(LE). According to numerous former detainees, the tribunals order the release
of mothers with their children, although it appears that compliance with such
orders is not always immediate: "When my husband was sentenced," N.A. said,
"the judge said [my child and I] could go free. But after that they took the
women back to the same prison and we had to stay there for another 45 days!"[187]

The humane policy of releasing mothers with children does
not apply to fathers arrested with their children. Hadja Abbas Haroun, the
pregnant woman killed on July 22, 2007, was survived by a daughter who is now
three years old, and by a husband who is now serving a one-year jail sentence.
A relative of Haroun told Human Rights Watch that he managed to attend her
husband's military trial in Ismailiyya. "As soon as they killed the mom they
took the child and the father to prison. But they separated her from her dad,
and she was staying in jail with three other women in al-Arish. At the court,
that was the first time her father had seen her."[188]
The experience of detention, evidently in a regular jail cell with prisoners to
whom she was not related, took a toll on the girl's health. "After [she had
been] a week in jail," Haroun's relative continued, "I saw the girl in court
and she looked really sick." Two days later, at a second hearing, the military
tribunal sentenced the father to jail and a 2,000 LE fine, and allowed the
relative to bring the girl home with him. "She had stomach problems, she was
throwing up," he said.

And she was really hot, her skin had blisters-they were all
over her body, but [worst] on her head. For a few days she wasn't speaking, she
was just crying. If we hadn't got her she might have died. The Egyptians were
just giving her bread but she hadn't been eating. I asked the women she was
with in jail if she'd ever been taken to hospital and they said no.

Since her release, the relative added, "she wakes up at
midnight two or three times a week and starts screaming."[189]

Egypt is obliged, according to the Convention on the Rights
of the Child (CRC), to ensure the rights of children to family unity: "[A]
child shall not be separated from his or her parents against their will,"
according to the CRC, "except when competent authorities subject to judicial
review determine, in accordance with applicable law and procedures, that such
separation is necessary for the best interests of the child."[190]
Where children are separated, Egypt is obliged to "respect the right of the
child who is separated from one or both parents to maintain personal relations
and direct contact with both parents on a regular basis," and, in cases where
these countries have detained, imprisoned, or killed one or both of a child's
parents, to, "upon request, provide the parents, the child or, if appropriate,
another member of the family with the essential information concerning the
whereabouts of the absent member(s) of the family."[191]

Denial of Access to
Asylum Procedures

In Egypt, asylum seekers and refugees detained in security
zones benefit from a lesser degree of international protection than those
detained elsewhere. In general, if a registered asylum seeker or refugee is
detained on grounds related to her immigration status in a non-security zone
(such as Cairo) and she informs Egyptian authorities that she is under UNHCR's
protection, the authorities will verify her claim with UNHCR, and will release
her (although State Security Investigations retains the final authority to
decide on the release).[192]
If the detainee has not yet registered with UNHCR, the Egyptian government will
contact the detainee's embassy to arrange for deportation, but in the interim
the detainee can ask the Egyptian authorities to contact UNHCR, or can usually
contact legal aid NGOs, community leaders, or relatives and ask them to do so
on her behalf. Lawyers, relatives and migrant community members can ask to
visit such detainees in detention, although Egyptian authorities denied access
to Eritreans in detention from late February 2008 until forcibly returning
hundreds to Eritrea in June.[193]

It is significantly more difficult for asylum seekers,
refugees, and other migrants detained in designated security zones to invoke
international protection. In practice, such detainees may be visited only
exceptionally. According to former detainees, military tribunals do not ask detainees
about their asylum status; rather, at some point during their detention, state
security agents determine whether detainees have registered with UNHCR as
asylum seekers or refugees. After they have served their sentences, those who
have so registered are released, but those who have not are deported.[194]
A Darfuri woman who was detained at the Sinai border said,

State security, who took our passport and UNHCR numbers,
told us that if we tried to cross the border again they'd put us in jail for
three years and then deport us. We went to the Mugamma [an administrative
headquarters in downtown Cairo], and they released those of us with UNHCR
cards. But they told two women, "We're going to send you back." The women had
never gone to UNHCR. They were from Darfur too, but they were only in Egypt for
two months.[195]

Persons who have not yet registered for asylum with UNHCR
and who are detained at Egypt's borders therefore face the risk of being
deported without ever having an opportunity to present asylum claims. As
Michael Kagan, senior fellow in human rights law at the American University in
Cairo, put it,

There has never been any solid system to ensure that UNHCR
was contacted by the government of Egypt when someone in detention makes asylum
claims. … There's a big gap in terms of those who may be unable to have their
asylum status determined. UNHCR would only find out you existed if you were
allowed to make a phone call.[196]

Detained migrants who manage to contact UNHCR often do so
despite, rather than with the assistance of, Egyptian prison authorities. A
refugee lawyer told Human Rights Watch that according to some of his clients,
"It's only by chance that [detained migrants] can get their case in front of
UNHCR. On their trips to security outside of jail, they have to bribe cops to
let them make calls to their relatives or to have them contact immigration."[197]An Ethiopian who volunteers to visit detained migrants in Cairo said he
advised Eritrean and Ethiopian detainees that in case of emergency they should
bribe Egyptian prisoners, who are allowed mobile phones, to make contact with
him for them.[198]

This volunteer told Human Rights Watch that he had been
involved in the case of an unaccompanied Ethiopian boy, whose age he estimated
at 10 or 12, whom Egyptian authorities had deported without allowing him the
opportunity to make an asylum claim. The volunteer said that he had visited the
boy after he had been transferred to detention in Cairo:

The boy was arrested at Aswan, when he crossed the border
from Sudan. He said his father was dead, and he didn't know where his mother
was. He told me his journey was seven days by foot-people who take that route
go to the Nile to get water, they walk at night, sleep during the day, with
barely anything to eat. He was sent back [to Ethiopia] in October 2007. We
haven't heard from him since. I wanted to talk to him before he left. I learned
the flight time from a man in the Ethiopian embassy and I went to the airport,
but the police refused to let me see him.[199]

A spokesperson for UNHCR Egypt told Human Rights Watch that
"we learn about those in detention from the Egyptian government." This official
stressed that the Egyptian government "is cooperative in telling us about
illegal Eritrean entrants."[200]
Egypt's deputy minister for refugees told Human Rights Watch that his office at
the Ministry of Foreign Affairs sends "dozens of faxes" per day to UNHCR
regarding migrants and asylum seekers detained at the borders.[201]

Nonetheless, in late February 2008, Egyptian authorities
refused UNHCR access to detained Eritreans. In March 2008, Egyptian lawyers
told Human Rights Watch, over 280 Eritreans and Ethiopians were known to be
detained in Burj al-Arab prison in Alexandria.[202]
In May, an Egyptian community-based NGO, compiling various lists, put the
figure at 400 Eritrean detainees. Egyptian authorities reportedly transferred
hundreds of Eritrean detainees to military detention centers in May, a move
human rights and refugee lawyers feared was a prelude to mass deportations.[203]
By June, UNHCR had collected the names of 1,400 Eritreans detained at various
sites throughout Egypt.[204]
From June 12 to June 15, Egypt reportedly deported 690 Eritreans on special
Egyptair flights from the Shallal detention facility in Aswan governorate to
Massawa, Eritrea.[205]
In total, Egypt may have deported 1,200 Eritreans from June 12 to 19.[206]Human Rights Watch spoke with Egyptian and Eritrean human rights
advocates who said they received frantic phone calls from detainees being
rounded up and put on trucks.[207]
A lawyer with the Hisham Mubarak Law Center, who was based in Aswan, said
detainees pleaded with Egyptian guards and threatened to commit suicide before
being forcibly deported.[208]

Conditions of Detention

Inadequate medical care

S.G., from Southern Sudan, was captured after Egyptian
border police shot and wounded her husband and her 13-month-old son. The family
was taken to hospital in al-Arish for 12 days, then to prison.[209]
S.G. has not seen her husband since. There may be many wounded migrants in
Egyptian jails like S.G.'s husband. A Washington Post reporter described
how one migrant carried another, whose legs had been shattered by bullets, into
an Egyptian courtroom, where the judge sentenced both men to a year in prison
and a fine for attempting to cross the border.[210]

Migrants and refugees who are seriously wounded at the Sinai
border face special risks in detention in Egypt. In some cases the wounded
faced initial delays in receiving medical care, such as when border police
detained a group of 16 migrants, including five who were shot at the border,
reportedly from 4 a.m. to noon in a police station before transferring the
wounded to a hospital.[211]
After treating them in hospitals, authorities subsequently transfer the wounded
to prisons where it is difficult to receive further medical care. A Sudanese
community leader told Human Rights Watch of one case where, he said, a man had
died from wounds inflicted by border guards after prison authorities denied him
adequate medical care. "They shot Yusuf in May 2007," said the community
leader, who had visited the man later that month.

No doctor took care of him in jail. It was in Port Said.
The jail there is very bad. They give them three pieces of bread every morning
at 10 a.m. and that's it. He died about a month after he was shot. There was no
medicine. They took the body back to Sudan.[212]

A former detainee told Human Rights Watch of a girl who
appeared to need medical care but did not receive it in detention. "There was a
girl, around 12 years old, who'd been shot in the shoulder at the border," he
said, "but they never let her go back to the hospital."[213]
Other former detainees recalled several cellmates who had been wounded by
border police gunfire. "She had been shot twice in the leg and once in the
shoulder," a woman recalled of a cellmate.[214] A man remembered
that during his time in an Egyptian prison, "I saw someone who had been shot in
his stomach and someone else who'd been shot in the foot, and another [who'd
been shot] in the calf."[215]

Conditions for women
detained with their children pretrial

M., a young mother arrested at the Sinai border, said she
was kept in a small cell with 14 other women. "We all got sick. We got only one
meal a day. Children got the same food. When I asked for anything else for the
children they laughed at me."[216]
An Eritrean woman, G.F., was a detainee at the Merkaz al-Nasser facility, known
as "Nuba Aswan," when she spoke with Human Rights Watch by telephone in March
2008, and said she shared a cell with 13 other people, of whom four were children,
including her own boys, ages 4 and 2. "There is not enough food," she told us,
"and the guards threatened that we would be deported because we are not
Muslims."[217]
Another woman, F.A., said her two young children were the only ones in a small,
dirty jail cell they shared with 18 or 20 other inmates. "There was nowhere to
put my children down, and the toilet was in the corner. The room was probably
three meters [square], it was really small. The toilet [a hole in the ground]
was right there, we had to sleep lying on top of it."[218]

Egyptian authorities have refused to allow volunteers
seeking to improve grim conditions of detention access to detained women and
children. An Ethiopian man who volunteers to bring food and medicine to
Eritrean and Ethiopian detainees transferred from the Sinai to Qanatir prison,
outside Cairo, said prison authorities there refused to allow him access to a
new mother and a pregnant woman.

We knew of two girls who were arrested at the border, one
was pregnant, one had just given birth. So we took food, milk, baby clothes.
And they wouldn't let us in. I know that the people who try to cross into
Israel are breaking the law. But the Egyptian government should treat them
better in jail, or let us visit them and give them food.[219]

Human Rights Watch could find no evidence that Egypt has
taken steps to ensure the health or other special needs of detained migrants
and refugee children are met, in violation of its international obligations.[220]
Failure to provide prisoners, including children in detention, with adequate
food violates Rule 20 of the Standard Minimum Rules for the Treatment of
Prisoners.[221]

Detention of
unaccompanied children with adults

Human Rights Watch learned of cases where Egyptian
authorities detained children who had attempted to cross into or out of the
country irregularly, in ordinary jails with adult prisoners in conditions that
did not appear to meet the "best interests of the child" principle articulated
by ExCom (see above),[222]
and specifically breached the prohibition in international law on detaining
children with adults. In one case recounted to Human Rights Watch in March, two
unaccompanied Eritrean boys, ages 13 and 11, whose mother had died in a car
accident shortly after entering Egypt, had been detained for roughly a month in
the "Nuba Aswan" facility.[223]
A July press release from UNHCR mentioned the same two boys, still detained.[224]

In another case, an Eritrean interpreter for UNHCR Egypt
told Human Rights Watch that in February 2008 Egyptian guards had killed an
Eritrean woman named Mervat Mer Hatover at the Israeli border.[225]
The woman was known to be traveling with two girls, but the interpreter said
that a month after they were presumably arrested, "no one knows where her girls
are."[226]
There is reason to fear that other unaccompanied children who have been
detained at either the Sudanese or Israeli borders may be "lost" in the
Egyptian prison system. According to Mokhlis Qutb, secretary-general of Egypt's
quasi-official National Human Rights Council, many prison officials habitually
fail to register both Egyptian and foreign detainees in their custody.[227]

Detaining children with adults violates Egypt's obligations
under the Convention on the Rights of the Child and under refugee law. Egypt is
obliged to ensure that "every child deprived of liberty shall be separated from
adults unless it is considered in the child's best interest not to do so."[228]
States must also protect detained children from the serious risk of abuse by
guards and other prisoners, including sexual abuse.

[181]Human
Rights Watch interview with R.A., Eilat, March 3, 2008. Although there were
three hearings in her case, "the lawyer waited until the third time, after six
months, to take the birth certificate for my youngest son to the judge. And
that same day they let me out."As discussed below, Egyptian military tribunals
tend to release mothers detained with their children.

[182]
UN Human Rights Committee, General Comment No. 13: Equality before the courts
and the right to a fair and public hearing by an independent court established
by law (art. 14), April 13, 1984,
http://www.unhchr.ch/tbs/doc.nsf/0/bb722416a295f264c12563ed0049dfbd?Opendocument
(accessed September 28, 2008), para. 4,

[183]African
Commission on Human and Peoples' Rights, Principles and Guidelines on the Right
to a Fair Trial in Africa, art. L (a), (c), reproduced at
http://www.justiceinitiative.org/db/resource2?res_id=101409 (accessed September
28, 2008).

[184]
Human Rights Watch interview with S.G., March 12, 2008. A military tribunal
ordered the woman's release after roughly one month in detention because her
twin infants had been arrested with her at the border (see below for a
discussion of the policy whereby mothers detained with young children are
released).

[185]UNHCR
ExCom Conclusion No. 84 (XLVIII) –
1997: "Refugee Children and Adolescents," para. (a)(i)-(iii). The
ExCom has also "reaffirmed the
fundamental right of refugee children to education and called upon all States,
individually and collectively, to intensify their efforts … to ensure that all
refugee children benefit from primary education of a satisfactory quality."
Conclusion No. 47 (XXXVIII) – 1987: "Refugee Children," para. (o).

[194]Human
Rights Watch interview with Michael Kagan, March 10, 2008. A refugee elaborated
on her own experience of these procedures as follows: "A police officer [at the
Immigration Department at the Mugamma administrative building in Cairo] had our
names and information and read it out. They checked to see whether we had UN
numbers. The people without any were sent back to Sudan. I knew someone from
Abyei who tried to cross the border with me and was caught with me, but her UN
file had been closed.… They brought her and me and her husband to Mugamma [a
large administrative building in downtown Cairo that houses Ministry of
Interior and other offices] together. Then they sent me back to jail but sent
her to Sudan. They said they were going to. I heard from her relatives she had
been sent back." Human Rights Watch interview with R.B., Eilat, March 3, 2008.

[222] ExCom Conclusion No. 84 (XLVIII) 1997:
"Refugee Children and Adolescents," para. (a): ExCom [c]alls upon States … "to
respect and observe … (i) the principle of the best interests of the child and
the role of the family as the fundamental group of society … (ii) the fundamental
right of children … to life, liberty, security of person, and freedom from
torture … (iii) the right of children … to education, adequate food and the
highest attainable standard of health; para (b)"Urges States and concerned parties to
take all possible measures to protect child and adolescent refugees, inter
alia, by: (i) preventing separation of children … refugees from their families
(ii) safeguarding the physical security of refugee children … [and] (iv)
providing appropriate training to military personnel … on human rights and
humanitarian protections to which children … are entitled." The ExCom has also
"reaffirmed the fundamental right of refugee children to education and called
upon all States, individually and collectively, to intensify their efforts … to
ensure that all refugee children benefit from primary education of a
satisfactory quality." Conclusion No. 47 (XXXVIII) 1987: "Refugee Children,"
para. (o).

[223]A
religious leader in the Eritrean community in Cairo had learned of the boys' case
when another prisoner called him and said he and 18 other men were being
detained in the same jail cell, around 3 meters square, with the two boys. The
boys' mother had died in a car accident in Aswan after crossing the border from
Sudan; the brothers had no family members in Egypt. Human Rights Watch
interview with O.A., Cairo, March 17, 2008. Human Rights Watch also spoke with
an Eritrean woman, G.F., who said she had was a detainee in the same jail, and
that she knew of the two children. Human Rights Watch telephone interview with
F.T., March 17, 2008.

[224]"UNHCR
Interviews 179 Eritrean asylum seekers detained in Egypt," UNHCR press release,
July 2, 2008, http://www.unhcr.org/news/NEWS/486b9e9f4.html (accessed October
3, 2008). The press release identifies the detention center as the Shalal
facility in Aswan, where the children had evidently been transferred.

[228]CRC, art. 37 (c)-(e). Similarly, according to the UN Rules for
the Protection of Juveniles Deprived of their Liberty, Egypt should provide
"every means" to ensure juveniles "have adequate communication with the outside
world, which is an integral part of the right to fair and humane treatment,"
including allowing them "to communicate with their families, friends and other
persons or representatives of reputable outside organizations," to "receive
regular and frequent visits, in principle once a week and not less than once a
month," and "to communicate in writing or by telephone at least twice a week
with the person of his or her choice … [and] to receive correspondence." United
Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted December 14, 1990, G.A. res. 45/113, annex, 45 U.N.
GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990), arts. 59-61.